• September 29, 2015
    Guest Post

    by Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee

    Senate Republicans campaigned last year on the promise that they would govern responsibly if they won the majority. Unfortunately, rather than solving problems, the current Republican leadership has instead prioritized divisive issues that play only to their political base. As a result, Senate Republicans have virtually shut down the confirmation process for judicial nominees and the Federal bench is approaching a vacancy crisis. This should be alarming to anyone who cares about our justice system.

    In the nearly nine months since Republicans have been in the majority, judicial vacancies have almost doubled. And under Republican leadership, the Senate this year has confirmed just six judicial nominees, while dozens more await a confirmation vote. This is no way to respond to a looming vacancy crisis that will negatively impact Americans’ ability to seek justice in our courts.

    The Senate’s constitutional role of advice and consent should be above partisan politics. For much of the Senate’s history, members worked across the aisle to confirm judges.  In 2007, when I was Chairman of the Judiciary Committee, we had confirmed 29 judges nominated by President Bush at this same point in his presidency. And in the last two years of the Bush administration, we confirmed 68 nominees. We also moved President Bush’s pick for Attorney General, Michael Mukasey, in a prompt manner that took just 53 days from announcement to confirmation. 

    By any measure, Republicans have failed to move President Obama’s nominees in a responsible manner. The nomination of Attorney General Loretta Lynch, an impressive and highly qualified lawyer, languished on the floor for 56 days— longer than the five previous Attorney General nominees, combined.  From announcement to confirmation, Loretta Lynch’s nomination languished for 166 days because of Republican obstruction. When Republicans finally did call her up for a vote, they required—for the very first time in Senate history—a procedural vote to overcome a filibuster on her nomination before finally approving her confirmation. And by confirming just six of President Obama’s judicial nominees this year, Senate Republicans are on pace to have the worst confirmation record of any Senate in more than a half century.

  • November 10, 2014

    by Caroline Cox

    In the Los Angeles Times, David G. Savage and Timothy M. Phelps argue that President Obama is unlikely to change the ideology of the Supreme Court with the new Republican Senate. ACS President Caroline Fredrickson is quoted in the article.

    Noah Feldman examines the newest challenge to the Affordable Care Act before the Supreme Court this term in Bloomberg View.

    In the Detroit Free Press, David H. Gans argues against the decision of U.S. Sixth Circuit Court of Appeals Judge Jeffrey Sutton that upheld same-sex marriage bands in four states.

    Jessica Eaglin writes at the blog for the Brennan Center for Justice on California’s Proposition 47 and the attempt to slow mass incarceration.

    At The Atlantic¸ Matt Ford explains why the Supreme Court may not have to rule on same-sexmarriage. 

  • November 4, 2014

    by Caroline Cox

    Justice Watch, the blog for Alliance for Justice, explains why a Republican-controlled Senate does not necessarily doom the judicial confirmation process for Obama-nominated judges.

    Jeffrey Rosen has a less optimistic view, and argues in The New Republic that the death of a justice during a Republican Congress would lead to disaster.

    Russel Berman reports in The Atlantic that a challenge to the filibuster survived a recent Supreme Court challenge.

    At SCOTUSblog, Amy Howe discusses Zivotofsky v. Kerry, the Jerusalem passport case, and what yesterday’s oral argument signals about how the Supreme Court will decide the case.

    Irin Carmon of MSNBC reports on the numerous ballot measures that challenge reproductive rights throughout the country.

  • July 12, 2013
    Guest Post

    by Richard W. Painter, former Associate Counsel to the President and Chief White House ethics lawyer, 2005-2007. Painter is co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform.”

    Word on Capitol Hill is that Senate Democrats are thinking seriously about changing the Senate's rules to make filibusters less likely. This is a welcome development because the filibuster -- a procedural mechanism for refusing to allow any vote to take place -- has no place in a body that prides itself on deliberation and decision. A decision not to decide, or to allow a minority of senators to prevent the others from deciding, is not deliberation. It is nothing more than obstruction, a way of saying that "if the majority won't vote my way I won't let them vote at all."

    Less than a decade ago the tables were turned and Democrats used filibusters to block President George W. Bush's judicial nominees. Republicans considered amending the Senate's rules to eliminate or reduce the likelihood of filibusters, but in the end they chickened out. They were perhaps more interested in preserving their power to frustrate a future Democratic president than in supporting President Bush. Perhaps they believed that even senators of the president's own political party benefit from filibusters because they can ask the White House for something in return for trying to break the filibuster. For whatever reason Senate Republicans failed to do something about the problem and some of President Bush's most qualified judicial nominees were kept off the federal courts as a result. Other nominees had to wait around for months before they were finally confirmed.

    This situation is even worse under President Obama now that Senate Republicans who once said they despised the filibuster have shown that they actually enjoy it. Thus far, Senate Democrats have followed the precedent of whining about the filibuster but not doing anything about it, perhaps fearing that they may once again be in the minority with a Republican in the White House.  

  • February 20, 2013

    The Atlantic reports that it’s now been nearly three years since a major piece of legislation made its way through the Senate. While the Senate had done things like passing a highway bill, and reapproving the import-export bank, most of the Senate’s legislative agenda for the last two years has been lurching from crisis to crisis – like the deals the ended the fiscal cliff crisis of 2012 and the debt ceiling crisis of 2011. Even matters completely within the prevue of the Senate, and once considered routine business, are becoming mired in partisan bickering. The Washington Post commented that the filibuster of Chuck Hagel’s nomination for Secretary of Defense, the first ever, marked the beginning of a 60-vote Senate. The president’s judicial nominations have fared even worse, with one nominee, Caitlin Halligan, waiting nearly two years for confirmation to the D.C. Circuit. Major action, such as comprehensive legislation on immigration reform and bold measures on climate change, is needed as are judges to fill vacancies on the federal bench (and there are a lot of them), but progress looks bleak in this atmosphere thanks largely to one of the nation’s two major political parties. The American people deserve far better than a Congress full of preening politicians constantly consumed with holding onto or expanding power.  

    -- ESA